NEWS ANALYSIS / First trial at Guantanamo raises more questions / Australian suspect, who doesn't seem serious threat, must play by narrow rules

William Glaberson, New York Times

Published 4:00 am, Sunday, April 1, 2007

2007-04-01 04:00:00 PDT Guantanamo Bay, Cuba -- As the first of the war crimes cases under a new law began here a few days ago, a military law specialist said it was a test run "to show that this plane will fly."

It was a bumpy ride.

The military commissions being convened here are special war crimes tribunals to try suspected terrorists that do not offer the legal protections of civilian courts. One justification for the looser rules is that they will deal with the worst of the worst.

But the first man through the double doors of the heavily secured courtroom here was no Osama bin Laden. He was David Hicks, a 31-year-old Australian whose lawyer described him as a ninth-grade dropout and "wannabe soldier" who ran away when the shooting started in Afghanistan.

From the start, Guantanamo, its detainees and the legal proceedings here have provided enough grist to support the competing views of the detention center: a necessary mechanism for dealing with a new kind of enemy, or the embodiment of the war on terrorism gone awry.

Hicks' conviction with a guilty plea provides something for each side. He admitted training with al Qaeda, guarding a Taliban tank and scouting a closed American embassy building. But there is no evidence he was considering a terrorist attack or capable of carrying one out. Yet he was held five years and four months before he got his day in court. And at the end of a very long day at the tribunal Friday, his sentence was nine months.

To the prosecutors and the extensive public relations apparatus assembled by the military here, Hicks' case proved, as one spokeswoman regularly repeated, that the military commission system offers a "fair, legitimate and transparent forum."

In the somber, makeshift courtroom, the lead prosecutor of the Hicks case, Lt. Col. Kevin Chenail of the Marines tried to portray Hicks as public enemy No.1.

"Today in this courtroom, we are on the front lines of the global war on terror," Chenail told a panel of military officers assembled from around the globe on Friday to hear arguments on the appropriate sentence. Hicks pleaded guilty Monday to providing material support to al Qaeda. "The enemy is sitting at the defense table," Chenail added, gesturing to Hicks. "We are face to face with the enemy" who was "trying to kill Americans."

But to some in the courtroom, the proceedings proved only that the system was rigged to show detainees that the only way out of Guantanamo was to give the prosecutors what they wanted. Not only did Hicks plead guilty, but he also signed a plea bargain in which he recanted his accusations about being abused in detention and promised not to speak to reporters for a year.

In the courtroom, the military judge had Hicks acknowledge each of the contentious provisions of his deal. Hicks, the judge read, agreed that he had "never been illegally treated" while in American captivity, including "through the entire period of your detention by the United States at Guantanamo Bay, Cuba." Hicks agreed to that statement.

In the cadre of observers from advocacy and human rights groups who are present here to monitor the proceedings, the plea deal Hicks reached was fresh evidence of the coercive power of this place. The plea bargain included a provision that will get Hicks out of detention here and into an Australian prison to serve the rest of his sentence within 60 days.

That provision as much as any served as a reminder of the international crosscurrents that will swirl around many of the cases here. There had been growing diplomatic pressure on the Bush administration to return Hicks to Australia, where his case has drawn wide attention and where Prime Minister John Howard, one of President Bush's most stalwart supporters, is facing a tough re-election fight.

Ben Wizner, a lawyer with the American Civil Liberties Union who is one of the regular observers in the courtroom here, said the deal showed that the military commission was intended to bring cases to the conclusion the government wants. "A person here, in order to have any hope of going home," he said, "has to play by whatever rules the government sets."

Jennifer Daskal, an observer for Human Rights Watch, said after the sentencing that the unusual rule silencing Hicks for a year showed that the government's primary goal was "the protection against the disclosure of abuse."

Other than a few muted words in court, Hicks was not heard from directly. But as developments unfolded, David McLeod, an Australian lawyer working with the defense, provided insight into Hicks' thoughts.

"He says that if he is the worst of the worst, and the person who should be put before a military commission first," McLeod said, "then the world really hasn't got much to worry about."